In re T.B. CA2/1 ( 2014 )

Filed 10/30/14 In re T.B. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re T.B. et al., Persons Coming Under the B252905
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK28454)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J. B. et al.,
Defendants and Appellants,
T.B. et al.,
Objectors and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County. Marilyn
Mordetzky, Referee. Reversed and remanded with directions.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for
Defendant and Appellant J. B.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and
Appellant Tyrone B.
No appearance for Plaintiff and Respondent.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Objectors and
Respondents (Minors).
________________________
Two years after the juvenile court terminated dependency jurisdiction with a legal
guardianship in place, Tyrone B. (Father) and J. B. (Mother) each filed a petition under
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Welfare and Institutions Code section 388, seeking an order placing their sons with
either or both of them, and/or an order reinstating (Mother)/granting (Father)
reunification services. Judge Mark Borenstein reviewed Father’s petition and granted
him an evidentiary hearing, finding the best interests of the children might be promoted
by the requested change in order. Judge Patricia Spear reviewed Mother’s petition and
granted her an evidentiary hearing based on the same finding. The Los Angeles County
Department of Children and Family Services (DCFS) filed responses to the section 388
petitions, recommending the juvenile court grant the petitions and order reunification
services for Father and Mother. A third judicial officer, Referee Marilyn Mordetzky,
reviewed the matter and denied the section 388 petitions without affording Father and
Mother the evidentiary hearing previously ordered.
Father and Mother appeal from the order denying their section 388 petitions,
contending the juvenile court abused its discretion in declining to hold an evidentiary
hearing. DCFS did not file a respondent’s brief on appeal, explaining in a letter to this
court that its position was aligned with that of Father of Mother. The children’s counsel
filed a respondents’ brief, urging this court to uphold the denial of the petitions on
grounds the petitions did not show changed circumstances or that the requested order was
in the children’s best interests. We agree with Father and Mother’s contentions the
juvenile court (Referee Mordetzky) abused its discretion in denying their section 388
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Further statutory references are to the Welfare and Institutions Code.
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petitions without holding an evidentiary hearing after judicial officers previously found
Father and Mother made the requisite showing to require an evidentiary hearing.
Accordingly, we reverse and remand the matter for the required hearing.
BACKGROUND
Prior Dependency Proceedings
DCFS and the juvenile court first became involved with this family in 1997 when
Father and Mother’s first born son, T.B., was an infant. Mother was 16 years old when
the juvenile court sustained counts in a dependency petition under section 300,
subdivision (b), that (1) Mother was a minor and lacked the resources to provide for T.B.,
and (2) Mother used marijuana on at least two occasions. In June 1997, the court
declared T.B. a dependent child. Mother failed to reunify with T.B., and the court
appointed the maternal grandmother T.B.’s legal guardian. In 2001, the court terminated
the legal guardianship and allowed Mother to regain care, custody and control of T.B. It
is not clear from the record whether Father was involved with Mother and T.B. during
this period.
In January 2008, DCFS again became involved with this family. T.B. was 10
years old, and Father and Mother now had three more sons: Ju.B. (6), D.B. (4), and Jo.B.
(2). In June 2008, the juvenile court sustained counts in a dependency petition under
section 300, subdivision (b), that (1) Father and Mother engaged in violent altercations in
the children’s presence, Father had convictions for corporal injury to a spouse, battery
and assault with a firearm, and Mother failed to protect the children by allowing Father to
live with the children; (2) Mother had an unresolved history of substance abuse, including
marijuana, and had a drug pipe in the home where the children could access it; (3) Father
had a history of substance abuse, had a drug pipe in the home where the children could
access it, was a current abuser of alcohol, and had a conviction for driving under the
influence; and (4) Father and Mother left the children in the home for days at a time
without making a plan for the children’s care and supervision. The court ordered family
preservation services for Mother, and apparently allowed the children to remain in or
return to the home at some point with Mother. The court did not order reunification
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services for Father because he was incarcerated in 2008 after DCFS opened the case, on a
charge not specified in the record, and he would remain incarcerated until 2011.
In December 2009, Mother tested positive for cocaine. DCFS detained the
children from Mother’s care and supervision. In January 2010, the juvenile court
sustained counts in a supplemental petition that (1) Mother failed to comply with court
orders requiring her to participate in random drug testing and family preservation
services, and she had the positive toxicology screen for cocaine in December 2009; and
(2) Mother had a history of petty theft convictions. The court terminated Mother’s
reunification services. Mother was incarcerated in 2010 and released a year later in 2011
on a charge not specified in the record.
On December 1, 2010, the juvenile court filed letters of guardianship, appointing
the children’s paternal grandmother, Barbara G., as the children’s guardian. The children
lived in New Jersey with Barbara. On June 29, 2011, the court filed letters of
guardianship, appointing Barbara G. and the children’s paternal aunt, D. G., as the
children’s co-guardians. Also on June 29, 2011, the court terminated dependency
jurisdiction. Barbara G. died in December 2012. The children remained living in New
Jersey with D.
Section 388 Petitions
On April 5, 2013, Father filed his section 388 petition, seeking an order granting
him reunification services and expressing his desire to have custody of the children. He
explained, since his release from incarceration in 2011, he had had stable housing for two
years and had been employed for one year and nine months. He had maintained daily
contact with the children and had visited them in New Jersey. Father stated, due to his
changed circumstances, all parties supported his request for a change in order and
believed it would be better for the children to be reunified with him.
On May 6, 2013, Judge Mark Borenstein signed an order granting Father a hearing
on his section 388 petition, finding the best interests of the children may be promoted by
the requested change in order. On June 18, 2013, the date set for the hearing on Father’s
petition, the juvenile court (Judge Borenstein) appointed counsel for Father and explained
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the court needed to continue the hearing because the clerk did not send notice of the
hearing to all parties. Therefore, DCFS did not file a report responding to Father’s
petition, and minors’ counsel did not interview the children. The court set the evidentiary
hearing for August 12, 2013, ordered DCFS to file its report by August 6, 2013, and set
August 8, 2013 as the due date for the parties to file witness and exhibit lists.
On August 12, 2013, the date set for the evidentiary hearing on Father’s petition,
DCFS filed its report, recommending the juvenile court grant Father’s petition and order
reunification services and a case plan for Father. DCFS also recommended the court
order Father to live apart from Mother because Mother had previously failed to comply
with the juvenile court’s orders (as noted above).
In the August 12, 2013 report, DCFS summarized the information Father provided
in his August 2, 2013 interview with the dependency investigator. While incarcerated,
Father completed parenting and carpentry classes, worked in the kitchen, and attended
Alcoholics Anonymous meetings. He wrote letters to his children and called them daily.
Since his release from incarceration, Father had visited the children in New Jersey three
times. The expense of traveling from California to New Jersey prohibited more frequent
visitation.
After his release from incarceration, Father worked at a hotel in Hollywood from
June 2011 to March 2013. He left his employment, and the apartment he had been living
in for two years, to help care for the children’s maternal grandmother who had been in an
accident. He and Mother moved to Lancaster to live with the maternal grandmother. In
June 2013, Father obtained new employment in Lancaster, and was still employed. He
was sober, attending drug counseling, and drug testing monthly as a condition of parole.
He was scheduled to be released from parole in March 2014. Father planned to enroll in
college “to attend the solar program being offered.”
Father told the investigator he wanted to reunify with his children and was willing
to move apart from Mother if that was a condition of the court granting him reunification
services. He wanted to regain custody of his children. At the time the investigator
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prepared the report, she had not yet interviewed the children or their guardian regarding
Father’s request for reunification services.
At the August 12, 2013 hearing, minors’ counsel requested a continuance of the
hearing on Father’s section 388 petition because she had not been able to reach the
children to discuss the matter with them. DCFS’s counsel also requested additional time,
explaining DCFS needed “to address what the impacts of the recommendations are on the
guardianship, because they’re recommending to basically have two permanent plans.”
Counsel appointed that day to represent Mother stated Mother would be filing a section
388 petition of her own. The juvenile court (Judge Patricia Spear) continued the matter
to September 27, 2013, and ordered DCFS “to analyze the impact of reopening the case
on funding for the guardianship.” Mother’s counsel informed the court Mother was
willing to submit to drug testing because Mother’s substance abuse was a jurisdictional
finding in the prior dependency proceedings. The court did not believe it could order
drug testing for Mother unless it reopened jurisdiction in the case.
On August 22, 2013, Mother filed her section 388 petition, seeking an order
returning the children to her custody or Father’s custody, and/or reinstating her
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reunification services. In support of her petition, Mother stated she had been sober for
more than three and one-half years and had “refrained from” domestic violence. She also
had steady employment as a data collector and stable housing. She maintained constant
telephone contact with the children and paid for their cellular telephone service. She also
had “weekly Skype sessions with the children.” She addressed the children’s behavioral
issues during telephone calls. She visited the children in New Jersey in January 2013.
Mother stated, “the children always spontaneously communicate to [her] their desire to
return home to [her] and their father in California.” She noted one of the children’s two
legal guardians died in December 2012.
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On September 30, 2013, Mother filed an amended section 388 petition, making
clear she was seeking the change in order regarding all four children and not only T.B. as
inadvertently indicated in the original August 22, 2013 petition.
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On August 28, 2013, Judge Spear signed an order granting Mother a hearing on
her section 388 petition, finding the best interests of the children may be promoted by the
requested change in order. The juvenile court set the hearing for September 23, 2013.
On September 23, 2013, DCFS filed its report responding to Mother’s section 388
petition. DCFS recommended the juvenile court grant Mother’s petition and order
reunification services and a case plan for Mother because “mother appears to have
matured during the last three years and she appears ready to take on the responsibility of
being a full time parent to the children.” DCFS also recommended the court order
Mother to live apart from the maternal grandmother because the maternal grandmother
was “involved criminally with the mother in 2009” and had made “negative comments
regarding the paternal side of the family to the children” during the prior dependency
proceedings.
In the September 23, 2013 report, DCFS summarized the information Mother
provided in her September 19, 2013 interview with the dependency investigator. Mother
had been sober for a few years. She had not engaged in any criminal activity since her
release from incarceration in 2011. She obtained housing and employment upon her
release, and also submitted to drug testing. She and father lived together and were
“working to regain custody of the children.” They also were working on their
relationship and Mother stated she would speak to Father about the investigator’s
suggestion that Mother and Father attend couples counseling. Mother was willing to live
apart from the children’s maternal grandmother if that was a condition of the court
granting her reunification services. In the event the court denied her request for
reunification services, she was hopeful the children would reunify with Father.
DCFS reported that Father and Mother’s three youngest sons, Ju.B. (12), D.B.
(10), and Jo.B. (8), wanted to return to California to live with Father and Mother. The
oldest son, T.B. (16), wanted to finish high school in New Jersey where he was a football
player and being scouted by college football programs. T.B. was supportive of Father
and Mother’s efforts to regain custody of his three younger brothers.
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DCFS also reported: “The legal guardian [D. G.] is in favor of the mother [and
father] receiving Family Reunification Services as the children want to return to their
parents, both mother and father.” D. confirmed that Mother maintained telephone contact
with the children and paid for their cellular telephone service. According to D., Mother
only visited the children in New Jersey once when D. paid for Mother and Father to fly to
New Jersey for the paternal grandmother’s funeral. Although D. did not have a good
relationship with Mother, she approved of the children returning to both parents because
she wanted the children to be happy. D. expressed some reservation, however, because
the children were doing well in New Jersey and she did not want them uprooted unless
Father and Mother were ready to be good parents. D. wanted Mother to stop telling the
children they would be back with her in California in six months in case it did not
happen. D. supported T.B.’s desire to remain with her in New Jersey, as did Mother and
Father.
On September 23, 2013, the date set for the hearing on Mother’s section 388
petition, the juvenile court (Referee Mordetzky) continued the matter to October 11,
2013. The minute order from the hearing states the court “continue[d] the matter for the
court and counsel to further investigate the court granting Mother’s [section] 388
petition.”
On September 27, 2013, DCFS filed a supplemental report regarding Father’s
section 388 petition. DCFS reported Father was participating in an alcohol and drug
program, had attended 11 of the 20 required sessions, and had tested negative. Father
also was participating in a parenting program and had attended three sessions in the 12-
session program. DCFS continued to recommend the juvenile court order reunification
services and a case plan for Father.
On September 27, 2013, the date set for the continued hearing on Father’s section
388 petition, the juvenile court (Referee Mordetzky) continued the matter to October 11,
2013, so it could be heard with Mother’s section 388 petition. The court stated:
“October 11, 2013 is not set for a contest. It’s set for whether in fact, based on the
declaration, which would be the response to the 388, the actual 388 filed by the parents,
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whether there is reason to grant what they are requesting and if there is no reason to grant
what they are requesting it is because it would not be in the best interest of the child or
there’s no change of circumstances, based on the declarations alone, it would be denied.
[¶] If there’s an issue that the court thinks would be the best interest of the children, that
will be set for contest. [¶] Is that understood?” Mother’s counsel responded, “Yes.”
None of the other attorneys responded, including the attorney standing in that day for
Father’s counsel.
On October 11, 2013, DCFS filed a supplemental report in response to the section
388 petitions. DCFS reported Father and Mother came into a DCFS office on October 9,
2013 to meet with the dependency investigator. Father brought documentation showing
he had attended five sessions of his parenting program. According to DCFS, Father
missed one session on September 24, 2013. Mother brought documentation showing she
had enrolled in an alcohol and drug program on October 2, 2012, and had enrolled in a
parenting program in which she had attended three sessions since August 27, 2013. The
investigator interviewed Father and Mother together and separately and noted “there was
tension between them.”
Mother informed the dependency investigator she planned to move from the home
of the children’s maternal grandmother and live by herself. The investigator stated in the
October 11, 2013 report: “The mother reported that she does not want anything to stand
in the way of the possibility of her receiving Family Reunification Services and she wants
to prove that she is responsible and is now in a position to provide and care for the
children. . . . The mother also reported that she and [Father] have different things to
prove and it is best that they not live together at this time. She reported that there [may
be] a possibility that eventually the[y] will get back together, however, if not she will be
prepared whether she received Family Reunification Services or he receives Family
Reunification Services.” Mother remained employed.
After leaving the DCFS office on October 9, 2013, Father called the dependency
investigator and informed her he planned to move out of the maternal grandmother’s
home in early November 2013 to live on his own. Father explained: “‘Well she
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[Mother] is moving her way and I am moving my way for a time. Maybe later we can
come together. We both have things to prove . . . . Things have changed and we have
differences; no problems, just a decision that was made.’” The investigator suggested to
Father that he and Mother go to counseling to address the past and present issues in their
relationship. Father was amenable to the suggestion, and stated he would speak with
Mother and “‘get on this immediately.” Father also told the dependency investigator he
remained employed in a “‘secure’” job which allowed him to work overtime, and he was
“‘trying to find a second job.’” Father further reported he was in compliance with the
terms of his parole and continued to drug test.
As stated in its October 11, 2013 supplemental report, DCFS continued to
recommend that the juvenile court order reunification services and case plans for Father
and Mother. DCFS also recommended Father and Mother attend counseling to address
the issues which led to the prior dependency jurisdiction. DCFS believed “It would be in
the best interest of all parties that the prior issues be addressed in order for [Father and
Mother] to fully focus on the children if and when the children are returned to their care
and custody.”
At the hearing on October 11, 2013, the juvenile court (Referee Mordetzky) stated
it had read Father’s and Mother’s section 388 petitions and DCFS’s reports in response
and was prepared to decide “whether in fact the court should set this for evidentiary
hearing.” The court commented: “If the court were going to set this for evidentiary
hearing, there would have to be some pretty strong facts that would indicate that there are
clearly a change of circumstances and that those change of circumstances [are] in the best
interests of the children. [¶] The court has read that they are changing circumstances, but
clearly not changed circumstances that would be in the best interest to go ahead and run
the risk and it would be a total risk if this legal guardian was not getting any funding once
the court granted any type of 388 that will provide for reunification services for these
parents on the chance that they may or may not be able to prove to this court that they can
have custody of their children.”
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Father’s counsel pointed out the court already had set the matter for a hearing and
he was entitled to a contested hearing. Father’s counsel and Mother’s counsel also
argued their clients had shown changed circumstances in their section 388 petitions.
Regarding the funding issue the court raised, Mother’s counsel pointed out there was
nothing in the record indicating how much money D., the legal guardian, received or
needed. Minors’ counsel commented: “The kids definitely are hoping that their parents
fulfill. They want to be with their father, but I think right now, in light of the fact the
parents are not prepared at this time, based on the long history, I think that you are -- I
think it’s almost selfish, they’re risking the caretaker’s funding on a chance they might or
might not reunify and then screwing the caretaker out of the funding. [¶] It almost
sounds strategic.” Counsel for DCFS did not make any comments at the hearing.
The juvenile court concluded the hearing by stating: “These parents are here in
this state, and the children are in New Jersey. So based on that, there is not a showing of
a change [of] circumstances but rather a changing circumstance, and that it’s not in the
best interest of the children to grant the matter for an evidentiary hearing, the 388’s are
denied.”
DISCUSSION
Mother and Father contend the juvenile court abused its discretion in declining to
hold an evidentiary hearing on their section 388 petitions. We agree.
Under section 388, subdivision (a)(1), “Any parent . . . may, upon grounds of
change of circumstance or new evidence, petition the court in the same action in which
the child was found to be a dependent child of the juvenile court or in which a
guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set
aside any order of court previously made or to terminate the jurisdiction of the court. The
petition shall be verified . . . and shall set forth in concise language any change of
circumstance or new evidence that is alleged to require the change of order or termination
of jurisdiction.” “If it appears that the best interests of the child . . . may be promoted by
the proposed change of order, . . . the court shall order that a hearing be held and shall
give prior notice . . . .” (§ 388, subd. (d).)
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“A petition under this section must be liberally construed in favor of its
sufficiency. [Citation.] Thus, if the petition presents any evidence that a hearing would
promote the best interests of the child, the court must order the hearing. [Citation.] The
court may deny the application ex parte only if the petition fails to state a change of
circumstance or new evidence that even might require a change of order or termination of
jurisdiction.” (In re Angel B. (2002) 97 Cal. App. 4th 454, 461.) A parent need only show
“‘probable cause,’” not “a probability of prevailing” on the petition, to be entitled to an
evidentiary hearing on a section 388 petition. (In re Aljamie D. (2000) 84 Cal. App. 4th
424, 432.)
“The juvenile court’s determination to deny a section 388 petition without a
hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile
court’s denial of appellant’s section 388 petition unless we can determine from the record
that its decision[] ‘“exceeded the bounds of reason.’” (In re Brittany K. (2005) 127
Cal. App. 4th 1497, 1505.)
Father and Mother each presented a section 388 petition showing both (1) a
change of circumstance, and (2) the best interests of the children might be promoted by
the proposed change in order. Father’s petition stated he was no longer incarcerated and
had maintained stable housing and employment since his release from incarceration two
years before. He had daily contact with the children by telephone, and had visited them
in New Jersey. Father stated all parties agreed with his request for reunification services
due to his changed circumstances. His request was supported by DCFS, the children’s
legal guardian, the children, and Mother.
Mother’s petition stated she had been sober for more than three years. She had
stable housing and steady employment. She lived with Father and their relationship was
free from domestic violence. She maintained constant telephone contact with the
children and paid for their cellular telephone service. She addressed the children’s
behavioral issues during telephone calls. She also had weekly Skype sessions with the
children. She visited them in New Jersey in January 2013. The children had
communicated to her that they wanted to live with her and Father in California. Her
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request for reunification services was supported by DCFS, the children’s legal guardian,
the children, and Father.
At the time they filed their petitions, neither Father nor Mother knew minors’
counsel would be unsupportive of their requests. The three younger sons had made clear
they wanted to live with Father and Mother in California. The oldest son, who wanted to
remain in New Jersey, was supportive of Father’s and Mother’s requests for reunification
services and their requests to gain custody of their three younger sons.
Judge Borenstein made a finding the best interests of the children might be
promoted by Father’s request, and the juvenile court granted Father an evidentiary
hearing on his petition. Judge Spear made a finding the best interests of the children
might be promoted by Mother’s request, and the court granted Mother an evidentiary
hearing on her petition. The court ordered DCFS to file reports in response to the
petitions.
A juvenile court only orders DCFS to prepare a response to the petition when the
petition states a prima facie case. (See In re Lesly G. (2008) 162 Cal. App. 4th 904, 913
[“the court ordered DCFS to prepare a supplemental report responsive to the petition.
There would have been no need for a response from DCFS had the court concluded
appellant’s petition was inadequate on its face”].) “When the court has determined the
[section 388] petition states a prima facie case, it is required to hold an evidentiary
hearing.” (In re Kenneth S., Jr. (2008) 169 Cal. App. 4th 1353, 1359.)
Judge Borenstein and Judge Spear did not err in granting Father and Mother an
evidentiary hearing on their section 388 petitions. As discussed above, each petition
showed (1) a change of circumstance, and (2) the best interests of the children might be
promoted by the proposed change in order. Thus, Referee Mordetzky had no cause to
reevaluate the petitions months later and decide the petitions did not set forth a prima
facie case.
DCFS agreed with Father and Mother that their section 388 petitions set forth a
prima facie case supporting their requests for reunification services. The children’s
counsel urged the juvenile court to deny the petitions without an evidentiary hearing
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because granting Father and Mother reunification services might affect the legal
guardian’s funding. There is nothing in the record indicating how much money the legal
guardian received or that she even needed funding to care for the children. The legal
guardian supported Father’s and Mother’s requests for reunification services. Before the
juvenile court denied the petitions, Father and Mother were entitled to a full hearing
where evidence regarding the legal guardian’s funding could be considered.
We find the juvenile court abused its discretion in denying Father’s and Mother’s
section 388 petitions without holding an evidentiary hearing. The petitions set forth a
prima facie case demonstrating the best interests of the children might be promoted by
granting Father and Mother reunification services. Father and Mother were sober,
employed, had refrained from domestic violence and criminal activity, and had a history
of stable housing. The three younger sons wanted to return to California to live with
Father and Mother. DCFS and the legal guardian supported Father’s and Mother’s
requests for reunification services. Father and Mother made the requisite showing for an
evidentiary hearing, as found by Judge Borenstein and Judge Spear. The court had no
cause to deny Father and Mother that hearing.
We reverse the order denying Father’s and Mother’s section 388 petitions and
remand the matter for an evidentiary hearing on the petitions. We express no opinion on
the outcome of that hearing.
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DISPOSITION
The order denying Father’s and Mother’s section 388 petitions is reversed and the
matter remanded for an evidentiary hearing on the petitions.
NOT TO BE PUBLISHED.
CHANEY, Acting P. J.
We concur:
JOHNSON, J.
MILLER, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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